The protester claimed that the Small Business Administration (SBA) wrongly deemed it ineligible for 8(a) status. GAO reaffirmed that it lacks jurisdiction to review SBA's determinations regarding a firm's small business status and thus dismissed the protest.
The Building People, LLC, GAO B-423896
- Background - The agency sought technical support services under the GSA’s Multiple Award Schedule contract. The protester was evaluated as the apparent successful vendor but was later informed by the SBA that it was ineligible for the 8(a) program. Consequently, the agency awarded the contract to the next highest-rated offeror. The protester challenged this decision, claiming the agency improperly relied on the SBA's eligibility determination.
- SBA Authority - The protester argued that the agency's exclusion was improper and that the GAO should review the SBA’s determination. However, GAO opined that it lacks jurisdiction to question the SBA's decisions on small business eligibility. Such determinations are conclusive. GAO emphasized that only the SBA possesses authority over these matters.
- Agency's Compliance - The protester contended that the agency did not need to seek SBA's approval for the specific procurement. It cited regulations that allow agencies to make awards without SBA involvement. GAO, however, noted that while the agency was not strictly required to consult the SBA, the agency's actions complied with specific directives from the SBA to obtain an eligibility determination prior to making an award.
- Consistency with Solicitation - The protester claimed that the agency's actions conflicted with the solicitation terms, which stated that 8(a) contractors need not certify their status at submission. GAO clarified that the solicitation did not prevent SBA involvement. The agency notified the SBA about the selection of the protester as the apparent awardee. This was consistent with the procedures in place, and did not violate the terms of the RFQ.
The protester is represented by Damien C. Specht, Esq., James A. Tucker, Esq., Alissandra Y. McCann, Esq., and Brian E. Doll, Jr., Esq. of Morrison & Foerster LLP. The intervenor, Transpacific Technologies, Inc., is represented by Stephanie D. Wilson, Esq., Rachael C. Haley, Esq., and Charles L. Bonani, Esq. of Berenzweig Leonard, LLP. The government is represented by Kevin R. Hilferty, Esq., and Stephanie B. Young, Esq. of the Department of Energy. GAO attorneys Michael Willems, Esq., and Evan D. Wesser, Esq. participated in the decision.